Decision

Recognition Decision

Updated 3 October 2023

Applies to England, Scotland and Wales

Case Number: TUR1/1330(2023)

3 October 2023

CENTRAL ARBITRATION COMMITTEE

TRADE UNION AND LABOUR RELATIONS (CONSOLIDATION) ACT 1992

SCHEDULE A1 - COLLECTIVE BARGAINING: RECOGNITION

DECLARATION OF RECOGNITION WITHOUT A BALLOT

The Parties: 

RMT

and

Unipart Rail Limited

1. Introduction

1)         RMT (the Union) submitted an application to the CAC on 31 May 2023 that it should be recognised for collective bargaining by Unipart Rail Limited (the Employer) for a bargaining unit comprising the “Engineering Technician, Production Operative, Mechanical Design and Development Engineer, Co-Ordinator, Toolmaker, Quality Assurance, Warehouse Operative, Warehouse Administrator, Site Engineer, Storeperson grades employed by Unipart Rail Ltd at the Southport Facility”.  The CAC gave both parties notice of receipt of the application on 31 May 2023.  The Employer submitted a response to the CAC dated 7 June which was copied to the Union.

2)         In accordance with section 263 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), the CAC Chair established a Panel to deal with the case.  The Panel consisted of Mrs Lisa Gettins, Panel Chair, and, as Members, Mr Alastair Kelly and Mr Paul Morley.  The Case Manager appointed to support the Panel was Kaniza Bibi.

3)         By a decision dated 4 July 2023 the Panel accepted the Union’s application. The parties then entered a period of negotiation in an attempt to reach agreement on the appropriate bargaining unit. On 11 August 2023 the parties notified the CAC that they had reached an agreement as to the appropriate bargaining unit and this was ‘All direct operational employees employed at the Southport site (including Engineering Technicians, Production Operatives, Team Coordinators, Warehouse operatives, warehouse administrator and QA Inspectors) and the following indirect production support roles employed at the Southport site; Toolmaker and Maintenance Engineer”. As the bargaining unit differed from the one originally proposed by the Union in its request for recognition, the Panel was required by paragraph 20 of the Schedule A1 to the Act (the Schedule) to determine whether the Union’s application was invalid within the terms of paragraphs 43 to 50 of the Schedule. In a decision dated 18 September 2023 the Panel determined that the application was not invalid, and that the CAC would proceed with the application.

2. Issues

4)         The next stage of the procedure required the Panel to decide whether a majority of the workers in the bargaining unit are members of the Union. Paragraph 22 of the Schedule provides that if the CAC is satisfied that a majority of the workers constituting the bargaining unit are members of the union it must issue a declaration of recognition under paragraph 22(2) unless any of the three qualifying conditions specified in paragraph 22(4) applies.  Paragraph 22(3) requires the CAC to hold a ballot even where it has found that a majority of workers constituting the bargaining unit are members of the union if any of these qualifying conditions is fulfilled.  The three qualifying conditions are:

(i) the CAC is satisfied that a ballot should be held in the interests of good industrial relations;

(ii) the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union (or unions) to conduct collective bargaining on their behalf;

(iii) membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union (or unions) to conduct collective bargaining on their behalf.  Paragraph 22(5) states that “membership evidence” is (a) evidence about the circumstances in which union members became members, or (b) evidence about the length of time for which union members have been members, in a case where the CAC is satisfied that such evidence should be taken into account.

5)         The Case Manager had conducted a check of the level of union membership within the agreed bargaining unit in order to assist the Panel to decide whether the Union’s application was invalid. A report of the result of the check was circulated to the Panel and the parties on 4 September 2023. This check showed that 66.67% of the workers in the bargaining unit were members of the Union. For the reasons set out in paragraph 9 of its decision dated 18 September 2023 the Panel was satisfied that this check provided a proper representation of the level of union membership within the bargaining unit.

3. The Union’s claim to majority membership and submission it should be recognised without a ballot

6)         In a letter dated 20 September 2023 the Union was asked by the CAC whether it claimed majority membership within the bargaining unit and, if so, whether it submitted that it should be granted recognition without a ballot. The Union, in an e-mail dated 20 September 2023, stated “I can confirm the union is claiming majority membership within the agreed bargaining unit and RMT therefore believe the union should be granted recognition for collective bargaining purposes without the need for a ballot”.

4. Summary of the Employer’s response to the Union’s claim that it should be recognised without a ballot

7)         On 21 September 2023 the CAC copied the Union’s e-mail of 20 September 2023 to the Employer and invited the Employer to make submissions in relation to the Union’s claim that it had majority membership within the bargaining unit and in relation to the three qualifying conditions specified in paragraph 22(4) of the Schedule.

8)         In its response dated 25 September 2023 the Employer stated that it did not believe that those workers who formed the trade union membership group in the bargaining unit joined the Union because they wanted the Union to be recognised.  When the Employer first met with the Union through ACAS in order to understand the claim for recognition, it confirmed it was about that year’s pay round.  The Employer had received exactly the same message from those workers that it had spoken to.  The Union had promised to achieve a better pay deal and belief in that promise had led workers to join the Union. The employer continued that Southport was one of 5 sites, and the annual pay award applied to all 5 sites, the promise from the trade union was not one it was likely to be able to fulfil.

9)         The Union had not explained to workers what its claim for recognition would involve in practical terms, to enable them to assess the overall position and the benefits and any drawbacks of having an enforced statutory recognition agreement.  For instance, the Union had not told prospective members that enforced recognition only applied to pay hours and holidays, and nor had it told them that the Union would not work with the existing employee forum if recognition was granted. The Union simply relied on its number of members and had never produced a petition or anything else from workers, or members, expressing support for recognition.

10)       With this background the Employer would argue that the qualifying condition that applied in this case was the damage that granting recognition without a ballot would do to good industrial relations at the Southport site.  The employee forum was long standing, effective and well supported by the whole of the workforce at Southport.  Issues of real concern had been raised and addressed by the employee forum including amending changes to holiday pay under a new HR system to meet employees’ concerns, staggering start and finish times to deal with problems of congestion for vehicles leaving the site, and many other examples.  In addition to dealing with pay, hours, and holidays – those things that would be covered by statutory recognition, the forum also dealt with issues including working conditions, working practices, training, and policies.

11)       Given the divisive stance taken by the Union in relation to the employee forum, over 30% of employees in the bargaining unit who were not members, and all those outside the bargaining unit, would in future have no voice.  The Union, if recognised, would only allow members to have a say, or vote, on any issues - including pay.

12)       Having a ballot where the Employer could provide information on how enforced statutory recognition would work, or not work in practice, meant that the workers could make an informed decision.

13)       If there was an independently conducted ballot, where each party had the opportunity to put forward its views on the benefits or otherwise of recognition at the Southport site, which resulted in a vote in favour of recognition at least all of the workers would understand why the industrial relations practices they had previously known would have to change. To radically change the position at a site with established and successful industrial relations, because those workers who were unhappy about this year’s pay deal had joined a trade union, did not represent the right approach to best practice in industrial relations. Good industrial relations were about long-term stability and the development of a successful and rewarding working environment - not short-term fixes, whether about pay or anything else.

5. Considerations

14)       The Act requires the Panel to consider whether it is satisfied that a majority of the workers constituting the bargaining unit are members of the Union.  If the Panel is satisfied that a majority of the workers constituting the bargaining unit are members of the Union, it must then decide if any of the three conditions in paragraph 22(4) is fulfilled.   If the Panel considers that any of them is fulfilled it must give notice to the parties that it intends to arrange for the holding of a secret ballot. 

15)       As stated in paragraph 5 above, the membership check conducted by the Case Manager showed that 66.67% of the workers in the bargaining unit were members of the Union and the Panel is satisfied that this check provided a proper representation of the level of union membership within the bargaining unit. Accordingly, the Panel is satisfied that a majority of the workers in the bargaining unit are members of the Union.

16)       The Panel has considered carefully whether any of the qualifying conditions set out in paragraph 22(4) of the Schedule is fulfilled.

17)       The first condition is that the Panel is satisfied that a ballot should be held in the interests of good industrial relations. The Employer argued that in order to have good industrial relations it was a requirement that a ballot must be held, but the Panel was not persuaded by the arguments put forward, that in order to have good industrial relations that a ballot must be held. The Panel has not received any evidence that a ballot should be held in the interests of good industrial relations and is not satisfied that this condition is fulfilled.

18)       The second condition is that the CAC has evidence, which it considers to be credible, from a significant number of the union members within the bargaining unit that they do not want the union to conduct collective bargaining on their behalf. The Panel has no such evidence, and the Panel has therefore concluded that this condition does not apply.

19)       The third condition is that membership evidence is produced which leads the CAC to conclude that there are doubts whether a significant number of the union members within the bargaining unit want the union to conduct collective bargaining on their behalf.  No such evidence has been produced, and the Panel has therefore concluded that this condition does not apply.

6. Declaration of recognition

20)       The Panel is satisfied in accordance with paragraph 22(1)(b) of the Schedule that a majority of the workers constituting the bargaining unit are members of the Union. The Panel is satisfied that none of the conditions in paragraph 22(4) of the Schedule is fulfilled. Pursuant to paragraph 22(2) of the Schedule, the CAC must therefore issue a declaration that the Union is recognised as entitled to conduct collective bargaining on behalf of the workers constituting the bargaining unit. The CAC accordingly declares that the Union is recognised by the Employer as entitled to conduct collective bargaining on behalf of the bargaining unit comprising ‘All direct operational employees employed at the Southport site (including Engineering Technicians, Production Operatives, Team Coordinators, Warehouse operatives, warehouse administrator and QA Inspectors) and the following indirect production support roles employed at the Southport site; Toolmaker and Maintenance Engineer”.

Panel

Mrs Lisa Gettins, Panel Chair

Mr Alastair Kelly

Mr Paul Morley

3 October 2023